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Pearce to invest in permanent bank or other stock, or in such
other manner as he may deem prudent, and to superintend and
collect the income and profits of the same, and, after deducting
all taxes and expenses from the income and profits of said trust
property, to pay over the balance as often as once in each year
to said Sarah C. Rickard, upon her sole and separate receipt there-
for, and for her sole use and benefit for and during her natural
life; and at the time of her decease the said Edward D. Pearce
shall pay, transfer, and deliver over the said trust property then
remaining to the lawful issue of the said Sarah C. Rickard then
alive/'

The bill further sets out that said Edward D. Pearce, Sr., ac-
cepted said trust, and, at the time of his death, on ^** the
twentieth day of January, 1883, held the said trust property in-
vested and standing in his name as trustee in ten shares of the
capital stock of the National Pacific Bank of Pawtucket, and
eight shares of the capital stock of the Fifth National Bank of
said Providence, and that said stocks have come to the possession
of the complainants as executors of his will, and are held by them
under and for the purposes of said trusts. That said Sarah G.
Rickard died on the sixteenth day of November, A. D. 1891, hav-
ing had and received all of the income of said trust property
during her life as provided in the said will of Mary E. Helme,
and leaving as her lawful issue at her death James H. Rickard,
Sarah H. Randall, George S. Rickard and Elizabeth Estelle Rick-
ard, her children and grandchildren, four children of the said
James H. Rickard and three children of the said George S. Rick-
ard, and that these, her said four children and seven grandchil-
dren were all of the issue of the said Sarah C. Rickard who were
living at the time of her death. That the complainants are de-
sirous that said trusts should be executed and said trust property
divided out and distributed as provided therein, but questions
have arisen as to how the same shall be done, and whether said
stocks shall be transferred directly into the names of the said
issue of Sarah C. Rickard, or shall be sold and the proceeds
thereof divided among said issue, and in diher event in what pro-
portions the said issue are entitled to the same. The biU prays
for instructions in the premises.

The answer of the respondents, Jonathan C. Randall, Sarah
H. Randall, his wife, and Elizabeth E. Rickard, admits the allega-
tions contained in said bill, and claims that the intention of the



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Jan. 1893.] Peakce v. Rickard. 767

testatiky Uaiy E. Helme, was that the issue of Sarah C. Sickardy
upon the decease of said Sarah, should take the trust estate in
said bill mentioned per stirpes, and not per capita, and that
therefore they, being each one of the four children of said Sarah
C. Bickard living at her decease, are entitled to have and receive
one-fourth each of said trust fund, and were so entitled at
and upon the death of their said mother, Sarah C. Rickard, under
the said will of said ^^ Mary E. Helme. Said James H.
Kickard and George S. Bickard have entered no appearance in
the case.

The answer of the other respondents, viz., James H. Rickard,
George W. Rickard, Alice B. Rickard, Mary E. Rickard, Alex-
andria Rickard, Everett B. Rickard, and Ilortense Rickard, the
Bame being the grandchildren of said Sarah C. Rickard, and all
being minors and appearing by their guardian ad litem, Thomas
C. Greene, Esq., simply submits their rights and interests in the
matters in question to the care and protection of the court.

The main question raised by the pleadings, therefore, is
whether the word **issue," as used in the clause of said will above
quoted, should be restricted to the children of said Sarah C.
fiickard, all of whom, it is to be observed, are still living, or
should be construed to include her said grandchildren also.

There is some conflict of judicial authority regarding the sig-
nification of the word "issue*' when used in a will, where nothing
appears to limit the legal import thereof, some authorities hold-
ing that in such case the word is sjmonymous with child or chil-
dren, while others hold that it is a word of purchase and not of
limitation, and hence includes all the descendants in being at the
time the term becomes operative.

The cases in England upon this subject are very unanimous in
rapport of the doctrine that the word "issue,'' unconfined by any
indication of intention, includes all descendants, and that in-
tention is required for the purpose of limiting the sense of that
word, restraining it to children only: Leigh v. Norbury, 13 Ves.
Jr. 340; Cook v. Cook, 2 Vem. 645; Bernard v. Montague, 1 Mer.
422, 434; Hayden v. Wilshere, 3 Term Rep. 372; Hockley v. Maw-
bev, 1 Ves. Jr. 143, 150; Davenport v. Hanbury, 3 Ves. Jr. 257;
Carter r. Bentall, 2 Beav. 651; Freeman v. Parsley, 3 Ves. Jr.
421; Slater v. Dangerfield, 15 Mees. & W. 263; Pope v. Pope, 14
Boa v. 591, 594; 11 Am. & Eng. Ency. of Law, 870, tit. 'Issue
Inrludes Descendants,'* and cases cited. See, also, 1 Jarman on
Wills, 89; 2 Williams on Executors, 999; 2 Bedfield on Wills, 2d
ed., 35, et seq.



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768 PfiABCB V. BiCKABD. £E. L

^^ And while the latter English cases seem to manifest a bias
on the part of the courts against so broad a construction of the
word "issue," by ingrafting a great number of exceptions upon
said rule, and by seizing upon very slight indications of an inten-
tion on the part of the testator to limit the meaning of said term,
yet we find no English case which assumes to lay down a doctrine
contrary to the general rule as above stated.

In tlus country, wliile the decisions are not so nniform aa
those in England in support of said rule, yet the decided pre-
ponderance of authority is in favor thereof.

The case of Wistar v. Scott, 105 Pa. St. 200, 213, 61 Am. Eep.
197, is a good illustration of the class of cases which adopts said
rule. In that case, after devising "Prospect Hill" lot to his
daiigliters Catharine and Sarah, "for and during all the term
of their natural Uves and the life of the survivor of them/* the
testator disposed of the estate in remainder in the following
words: "And from and immediately after the decease of the sup-
vivor of them, I give the same up to the male issue, then living,
of my said son Iliehard, their or his heirs and assigns in fee; but
if no such issue shall then be living, in such case I give the same
unto all the children of my said daughters Catharine and Sarah
and my son Eichard, their heirs and assigns, in equal parts, ac-
cording to the number of them.** In construing, this provision
of the will, the court said: "The word 'issue* in a will prima facie
means the same as heirs of the body, lineal descendants in-
definitely, and is to be construed as a word of limitation; but the
prima facie construction gives way if there is anything on the
face of the will to show that the word was intended to have a less
extended meaning, and to be applied to children only, or, as in this
case, to lineal descendants of a particular class in being at a
specified time: Slater v. Dangerfield, 15 Mees. & W. 263. The
phrase, 'male issue of my son Eichard then living,* is a descriptio
personarum, designating the class of persons to whom the re-
mainder in fee was given upon the termination of the particular
life estate; and the question is, Who composed that class when
the Mirvivor of testator^s two daughters died, **'' September 21,
ISnC) — in other words, who, according to the true interpretation
of the will, were the male issue of testator's son Richard living at
that time? .... When, as in the present case, the word is mani-
festly used as descriptive of the devisees, and is also restricted
to such issue as shall be living at a specified time, it is always con-
stniofl as a word of purchase, embracing all lineal descendants of
the person named in being at the time so specified, unless i4



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Jau. Ib9a.] P£Auc£ v. iUcKARD. 759

dearly appears from the context that the testator intended other-
wise: See, also, Kobbins v. Quinliven, 79 Pa. St 333, 335;
Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. 476, 484, 486;
Ward V. Stow, 2 Dev. Eq. 509; 27 Am. Dec. 238; Weldon v. Hoy-
land, 4 De Gex, F. & J. 564; Jackson v. Jackson, 153 Mass. 374;
25 Am. St. Bep. 643; 2 Williams on Executors, 1197, and note
1198; Hawkins on Wills, 87, tit "Issue"; Jarman on Wills, ed.
1881, p. 101. In Massachusetts it is provided by statute that
'^the word 'issue,' as applied to the descent of estates, shall in*
elude all the lawful lineal descendants of the anoestor'': Mass.
Pub. Stats., c. 3, sec. 3.

The court of appeals of New York, while manifesting con-
siderable dissatisfaction with the construction put upon the word
**issue'* by the English courts, and an inclination to look for
something in the context of the testator's will which will take the
case out of the rule aforesaid, yet recognize the binding force of
the adjudged cases as to the primary meaning of said word:
See Palmer v. Horn, 84 N. Y. 516, 518, and cases cited.

The coimsel for the two of the children of said Sarah C.
Rickard has cited, amongst others, the last-named case, and also
the case of Taf t v. Taft, 3 Demarest, 86, in support of his conten-
tion that the word ''issue'* should be limited to children. The
first-named case is against him, while the last, though fully sua-
tniiiing his position, and, so far as we are able to ascertain, not
having been overruled, yet as it professes to follow Palmer v.
Horn, 84 N. Y. 516, while in fact it decides precisely to the con-
trary thereof, we do not think it entitled to very much weight
The surrogate evidently misconceived the purport of Palmer v.
Horn, 84 N. Y. 516, and while following "^^ the spirit thereof,
clearly mistook the letter, as in that case the court found from in-
dications in the will that the testatrix used the term "issue" as
synonymous with children, and that by the word "children" she
had herself interpreted the word "issue."

Taft V. Taft, 3 Demarest, 86, was decided by the surrogate of
Kings county in 1885. The surrogate of New York county, in
1883, on the contrary, in Murray v. Bronson, 1 Demarest, 217,
in a very elaborate opinion, in which he reviewed at length the
English and American decisions bearing upon the proper con-
struction of the word "issue," fully recognized the binding force
of the rule hereinbefore adopted. The rule contended for by the
counsel for said children of Sarah C. Rickard, has been adopted
in Kentucky^ where in Moore v. Moore, 12 B. Mon. 665, it waa



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7W) P£AACK V. RiCKABD. [B. L

held that '^ue, in common parlance, and as naed generally by
the community signifies immediate descendants — children."

That decision was evidently based upon the authority of
Chancellor Kent (see 4 Kent's Commentaries, 278), who says:
''The word ^ssue' may be used either as a word of purchase or
limitation, but it is generally used by the testator as synonymous
with child or children/' Chancellor Kent was eyidently op-
posed to the English rule of construction as above set out, on the
ground that it tended to defeat the intention of the testator.

Judge Eedfield, in his excellent work on the Law of Wills (see
pt. 2, p. *363), takes the same ground, and strongly argues in favor
of following the lead of Chancellor Kent, in breaking away from
the English decision, and, as he says, ^'redeeming it [the law]
from a perversion under which it has long labored, and which has
already produced infinite injustice, and unless abandoned will be
liable to produce an incalculable amount in the future.''

But while recognizing the importance which should be at-
tached to these eminent authorities, yet we feel that the role of
construction, in cases of this sort, has become too well ^^® set-
tled to be disturbed by judicial decision, even if we were disposed
to take the view adopted by Chancellor Kent. For it is of the
utmost importance that, in a matter so vital to the interests of
the people at large as the distribution of testate estates, there
sliDuld be uniformity of decision in interpreting the ordinary
language used in wills.

But the said children of Sarah C. Bickard contend that the
construction of said bequest most consistent with the intention
of the testatrix is to allow them to share equally in the fund to
be distributed, to the exclusion of the more remote descendants,
i. €., the grandchildren. And this, not only upon the authorities,
but upon the broad and fundamental principle of carrying out the
most probable intention of the testatrix.

We have no means of ascertaining the intention of the testatrix
as to the disposition of said trust fund after the death of the life
tenant, except as disclosed by said bequest, which simply provides
that at the time of her decease, "said Edward D. Pearce shall pay,.
transfer, and deliver over the said trust property then remaining
to the lawful issue of the said Sarah C. Rickard then alive.'*^
There is certainly nothing in this language which shows an inten-
tion to restrict the meaning of the word "issue'' to children, and
hence the primary signification of said term, as above set forth,
muj^t prevail.

But is is further contended that whenever the gift to issue is^



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Jan. 1898.] Fsabcb v. Bicka&d. 761

in any way substitutional in its nature, or issue are to take in a
representatiye or quasi representatiye way, ''issue'' means chil-
dren, to the exclusion of more remote descendants.

It is doubtless true that where the gift to the issue is substitu-
tional, they take per stirpes and not per capita. That is to say,
where issue are pointed out in the will to take with reference to
the share of the parent, they take by way of substitution: Min-
chell V. Lee, 17 Jur., pt. 1. p. 727; Dexter v. Inches, 147 Mass.
324. But, as we have akeady seen, there is nothing in the will
before us to show an intention on the part of the testatrix that
the grandchildren of said Sarah C. Rickard should not share
equally with her children **® in the distribution of said trust
fund. Moreover, a substitutional taking, or a taking per stii-pes,
strictly speaking, can only occur in case of the death of the
stiiTies, or stock; and in the case at bar all of the children of said
Sarali were living when said gift over took effect. There is
therefore no room for the application of the rule contended for,
even assuming that it would apply had one of the children of said
Sarah deceased in her lifetime leaving children.

We therefore decide that the grandchildren of said Sarah C.
Rickard are entitled to share per capita with her children in the
distribution of the trust fund in question. As it is evident that
the specific property bequeathed by the will under consideration
cannot be conveniently divided amongst those entitled thereto,
we advise that the same be sold by the complainants, and the pro-
ceeds thereof distributed in accordance with this opinion.

WILLS-ISSUE-DISTRIBUTION. -The word "issue, »• when used
in a will, without any qualifying words or circumstances, comprehends
all persons in the line of descent from the ancestor, and has the same
meaning as "descendants": Soper v. Brown, 136 N. Y. 244; 82 Am. St.
Rep. 731. It is to be construed either as a word of limitation or of pur-
chase, as will best effectuate the intention of the testator, gathered from
the whole instrument; but where the word evidently includes (grand-
children, as well as children, of a devisee, it means only those children
and grandchildren alive at the time of the testator's death : Parkhurst
V. narrower, 142 Pa. St. 432; 24 Am. St. Rep. 507. Under a gift to
"issue," where the word is used without any terms in the context to

Sualify its meaning, the children of the anceFtor and the issue of such
bildren, although the parent is living, as well as the issue of deceased
children, tate in equal shares per capita, and not ner stirpes, as primary
objects of the disposition: Soper v. Brown, 136 N. Y. 244! 32 Am. St.
Rep. 731. The law of succession to estates of intestates is treated at
length in a monographic note devoted to that labjeot in Ib i« Ingnun,
12 Am. St. Rep. 81-113.



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762 Hackett •• Hackstt. [B. L



Haokbtt v. Hackett,

[i& RHOSB XBLAJ7D, 163.]

BURIAL RIGHTS— REMOVAL OP REMAINS.— A widow, and

not the next of kin, has the right to control the burial of her deceased
husband, dependent, however, upon the peculiar circumstances of the
case, or the waiver of such right by consent or otherwise. If her right
has not been waived, she may remove the body, after interment, to
another place of sepulture.

George J. West^ for the plaintifE.



Daniel B. Ballou and Frank H. Jackson, for the respondent

166 STINESS, J. This is a hillin equity to compel the w-
spondent to return the body of her late husband, Thomas F.
Hackett, to the grave where it was buried, and from which she has
removed it without consent of the complainant, the father and
next of kin of said Thomas F. Hackett. The deceased was the
owner of a burial lot, one of **^® a family group, in St Mar/e
Boman Catholic Cemetery in the village of Crompton, where he
was buried, with the acquiescence of the respondent, his widow.
About six months afterward she caused the body to be exhumed
and buried in the Biverside Cemetery in the city of Pawtucket
The respondent claims that she was justified in doing this:
1. Because her husband had requested her not to permit his
body to be buried in a Boman Catholic cemetery, but in a Protest-
ant cemetery; 2. That she did not consent to his burial in St
Mary's Cemetery, but, being overcome with grief, and with
physical prostration from nursing her husband in his last sick-
ness, she yielded, under protest, to the demand of his relatiyes
for the burial aforesaid, so far as to offer no resistance thereto,
on account of their threats to take forcible possession of the
body and of her aversion to the disgrace of any strife over his
remains; 3. That as the widow of said Thomas F. Hackett she
has the right to control the place of burial^ and that she has not
surrendered this right.

Upon the first and second grounds set up in the answer we did
not hear testimony, preferring first to consider the third ground,
in which the widow claimed the right to control the place of
burial, as against the next of kin, which might be decisive of the
case. We come, then, to the question whether the right to con-
trol the burial of a deceased husband is in the widow or in the
next of kin. In Pierce v. Proprietors of Swan Point Cemetery,
10 B. I. 227, 14 Am. Bep. 667, it was held that while no one can
be considered as the owner of a dead body, in any sense what-



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Jftn. 1893.] Hackett v. Hackbtt. 768

ever, yet there is a quasi property in the custodian^ in the nature
of a trust for the benefit of all who have an interest in it, which
the court will regulate. In that case, a widow removed the re-
mains of her husband, which, with her consent, had been buried
in his own lot and there had rested about thirteen years. The
court held that as the complainant, a daughter, was then the
owner of the burial lx)t which had been invaded, and so was the
custodian of the remains, they should be restored to the place
from which they were taken. There are other cases of this sort,
where the question has arisen as to the right of the next of kin,
after ^^'^ burial; notably the cases of Wyncoop v. Wyncoop, 42
Pa. St 293; 82 Am. Dec. 606, with notes; Beport of Hon. S. B.
Buggies, 4 Bradf. 503; Eenihan v. Wright, 126 Ind. 636; 21
Am. St Bep. 249. In Bogert v. Indianapolis, 13 Ind. 134, where
the question was Vhether the city or the next of kin should have
control of an interment, the court decided in favor of the next of
kin. In all these cases general expressions were used by the
courts to the effect that the next of kin had rights exclusive of
all others. Such expressions were appropriate to the case under
consideration, but are not to be taken as authority upon the ques-
tion which is now before us. In Pierce v. Proprietors of Swan
Point Cemetery, 10 B. I. 227, 14 Am. Bep. 667, and Wyncoop v.
Wyncoop, 42 Pa. St. 293, 82 Am. Dec. 50(), the right of a widow
to remove the remains of her husband, against the will of the
next of kin, was denied upon the ground of her consent and long
acquiescence in the burial; but those cases do not decide that the
next of kin had a superior right to that of the widow at the time
of the burial. The third conclusion of Mr. Buggies, in his re-
port cited above, is: "That such right, in the absence of any tes-
tamentary disposition, belongs exclusively to the next of kin.**
But in a note to Weld v. Walker, 130 Mass. 422, 39 Am. Bep. 465,
in 14 American I^w Beview, volume 1, new series, page 62, it is
said that Mr. Riipffrles added a note to the original report, in ex-
planation of the term "next of kin,'* stating that it was not em- .
ployed for the purpose of denyintr or questioning the le^i^al ri^ht
of a surviving husband to bury his wife's remains, or to reinter
them if disturbed. In Snyder v. Snyder, 60 How. Pr. 368, the
right to select a place of burial was awarded to a son, instead of
the widow. The son was born of a former marriage; and the
widow was a second wife, who had been married to the deceased
bnt four years, with no children, and the last two years of his
lifp had been spent in a lunatic asylum. The widow desired the
remains to be buried in a lot owned by her father, and the son



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761 Hackbtt v. Hackjett. [B. L

desired to bury them in a lot owned by the deceased at his former
home^ in Connecticut, by the side of his £rst wife and deceased
children. Under these circumstances the court decided in favor
of the son. The judge giving the opinion concluded with these
words: '*! mean to ^*® recognize the fact that circumstances
may exist which should give the widow the preference over the
son^ but in this case I think the claim of' the son is to be pre-
ferred/' We know of no case that denies to a husband, who was not
separated from his wife, the right to select the place of bunaL
Even in case of a separation, the husband has been held liable
for the expense of interment, which had been incurred by a rela-
tive of the wife without his knowledge or consent: Ambrose v.
Kerrison, 10 Com. B. 776. In Durell v. Hayward, 9 Gray, 248,
69 Am. Dec. 284, the court assumes 'Hhe indisputable and para-
mount right, as well as duty, of a hiisband to dispose of the body
of his deceased wife by a decent sepulture in a suitable place":
See, also, Cooney v. Lawrence, 11 Pa. Co. Ct 79. But if , as a
rule, where there have been no discordant relations, a husband
has the right to bury his wife, why should not the widow have the
same right with reference to his remains? A woman is natu-
rally quite as sensitive in such a matter as a man. It would be
quite. as great a shock to her to have the body buried against
her wishes as it would be to a man. Hers is a relationship closer
than that of kindred for it is the teaching of Holy Scripture: "A
man shall leave father and mother and shall cleave to his wife,
and the twain shall be one flesh.'* The chances of complications
by remarriage are no greater in her case than in that of a man,
and the reasons which give the right to the husband are equally
applicable to her. It would be a snock to the sensibilities of
humanity to say that the reasonable wishes of a wife in regard to
the burial of her husband should not be entitled to paramount
respect, when such a right would be accorded to him. It is use-
less to say that a married woman cannot make a contract, for as a
- widow she is under no disability and the funeral expenses are a
preferred charge on the husband^s estate. This is not a question
of contract, nor of liability, but of sentiment and propriety. In
no ease is it an absolute right, but, as this court has already said,
*^a sacred trust for the benefit of all who may, from family or
friendship have an interest in it,*' which should be properly ad-
ministered; and, as we now say, primarily administered **• by
the wife, due regard being had to the circumstances of the case.
As remarked by the court in Scott v. Hiley, 16 Phila. 106: ^'A
legal right of this character should be based upon natural affec-



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Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 87 of 121)